0120141336
03-11-2015
Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120141336
Hearing No. 532-2012-00058X
Agency No. CHI-11-0620-SSA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's January 30, 2014 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Part-Time Claims Representative at the Agency's Akron, Ohio office.
On July 19, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that he was subjected to harassment/hostile work environment based on race (African-American), sex (male), religion (not specified), disability (migraine headaches), and in reprisal for prior EEO activity when:1
1. on May 16, 2011, management questioned the legitimacy of his request for three hours of time to meet with an EAP counselor;
2. on May 16, 2011, management rescinded approval to allow him to accrue credit hours during the week;
3. since May 16, 2011, his workload increased and his processing time goal was reduced;
4. on May 12, 2011, the District Manager questioned his departure from a staff meeting;
5. from December 2010 through January 2011, he and other male employees were not given the option to work from another office during inclement weather, like a female employee;
6. from September 17, 2010 through May 23, 2011, management failed to provide him the same attention as others when he expressed interest in opportunities to excel, e.g., multiple promotion details, and his requests for advancement opportunities were not forwarded to the proper decision-making officials and screened out by his managers;
7. since the District Manager's arrival in April 2010, a disproportionate number of males in the office have had their performance appraisals lowered while several females have had their performance appraisals raised;
8. he received unsolicited religious epithets/innuendos, most recently on April 8, 2011 when the District Manager stated he was lazy and that it "was a sin to be lazy;" and
9. on October 10, 2011, he was charged 3/4 hours of Absent Without Leave (AWOL).2
The record reflects that Complainant has a 30% service-connected disability involving migraine headaches. Complainant experiences chronic migraine headaches which are controlled with a combination of stress reduction and medication. The record further reflects that Complainant states that he is unable to work full-time due to his medical condition. Complainant states that whenever he experiences a migraine headache, all of his major life activities are affected by his condition.
Following the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The Agency filed a Motion for a Decision Without a Hearing on August 15, 2012. Complainant filed a Response on August 31, 2012. The AJ issued a decision by summary judgment on January 14, 2014, in favor of the Agency.
In reaching her decision, the AJ found the following facts were established in the record. Regarding allegation 1, on May 16, 2011, Complainant requested three hours of time from his supervisor to meet with an EAP counselor. The District Manager (Caucasian female) intervened, questioned where his appointment was and, according to Complainant, told him that the three-hour request was unreasonable. However, she subsequently approved the request.
Regarding allegation 2, the District Manager rescinded approval to allow Complainant to accrue credit hours during the week. Complainant acknowledged that he is a part-time employee and that part-time employees are generally not permitted to work credit hours. However, Complainant asserted that he was granted approval to do so in 2005 by his former manager as a reasonable accommodation of his disability, but conceded he did not utilize the opportunity until prior to the District Manager's arrival at the Akron office.
The District Manager stated that during the relevant period she allowed Complainant to earn credit hours on dates that he worked less than eight hours "until May 2011, when a member of my management team discovered that this practice might violate the terms of the Contract." The District Manager stated she sought advice from Labor and Employee Relations and "based on the advice I received, I informed [Complainant] that he could no longer earn credit hours on days on which he worked less than eight hours. However, [Complainant could still earn credit hours by working on his non tour days, Wednesdays and Saturdays or working over tour on his regular tour days until he meets the eight-hour requirement and then working credit hours."
The record also shows that the District Manager granted Complainant a modified work schedule as a reasonable accommodation to his disability.
Regarding allegation 3, in May 2011, Complainant's workload was increased with the addition of telephone responsibilities. The record shows that that Complainant's workload changes were made due to the departure of a number of other staff members between May and June 2011.
Complainant also alleged that his processing time goal was reduced. The District Manager stated that upon her arrival at the office, she "created a weekly chart that listed all pending deadlines within the office and marked in red those cases that were either past due or quickly approaching their deadlines. I used the red highlights as a management tool to notify employees which cases to prioritize before working on cases that were not highlighted in red. The chart applied to all employees' workload, including management." The District Manager also stated that the processing time for appeals did not change from 45 days to 30 days and that she explained this to Complainant several times. The District Manager stated that the only change made was how cases appeared on the weekly list.
Regarding allegation 4, the AJ noted that on May 12, 2011, there was an emergency staff meeting held to discuss an impending government shutdown. Complainant left the meeting and did not return. Later that afternoon, the District Manager saw Complainant in the break room eating. The District Manager told Complainant that he was not entitled to a break because he was only working three hours that day. The AJ noted that under the collective bargaining agreement, employees must work four hours to take a fifteen minute break. Complainant alleged that the District Manager also explored charging Complainant with being AWOL for the time he was eating rather than working. Complainant states he left the meeting because he was developing a migraine headache and got something to eat brought to him by his wife.
Regarding allegation 5, the AJ noted that the record reflects that on February 1, 2011, the District Manager closed the offices in the Akron cluster due to inclement weather. The District Manager stated that while she allowed the Assistant District Manager work out of the Lorain, Ohio office that day because it was closer to her house, she worked out of the Area Director's office which was closer to her home. The AJ further noted that all employees, including Complainant, received a paid administrative day off for February 1, 2011.
Regarding allegation 6, the record reflects that in September 2010, Complainant expressed interest in two positions, a 120-day operating detail in Warren, Ohio and a 120-day management support specialist detail in Fremont, Ohio. Complainant was not selected for either detail. Neither the District Manager nor Complainant's immediate supervisor was involved in any way in the selection for the details.
Regarding allegation 7, the record shows that no employee had his or her performance appraisal lowered during the relevant period. Complainant's appraisal rating remained the same, but did not qualify him for an award. The record shows that male and female, Caucasian and African American employees received performance awards. The District Manager did raise two employees' performance ratings - one an African American male.
Regarding allegation 8, the AJ noted that Complainant alleged that on April 8, 2011, the District Manager told him that it is "a sin to be lazy."
Regarding allegation 9, the District Manager did not charge Complainant with 3/4 hour of AWOL on October 10, 2011, rather he was charged by his immediate supervisor because he left work without approval. The AWOL was later changed to Advanced Annual Leave by the District Manager after Complainant complained to her about it.
Based on this evidence, the AJ determined that Complainant failed to prove that he was subjected to harassment that was sufficiently severe or pervasive to create a hostile work environment, or that the incidents identified by Complainant in support of his harassment claim were connected in any way to his protected bases.
On January 30, 2014, the Agency issued its final order implementing the AJ's decision. The instant appeal followed.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court does not sit as a fact finder. Id. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. A disputed issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catreet, 477 U.S. 317, 322-323 (1986); Oliver v. Digital Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of a case.
On appeal, Complainant asserts that the AJ erred in making a decision by summary judgment because there remain material facts in dispute that require resolution at a hearing. In his brief on appeal, Complainant, through his attorney, focuses on allegation 4 - the incident where Complainant was allegedly threatened with an AWOL charge for leaving a staff meeting and later found by the District Manager in the break room eating. Complainant asserts that this incident showed sufficient racial animus from the District Manager towards Complainant to warrant a hearing. Complainant argues that the District Manager admitted she had not tried to initiate disciplinary action against any other employee for eating, but did so against Complainant, a black man eating fried chicken. Complainant points to a "strong stereotype about black people and chicken." Complainant asserts that this is sufficient to require credibility determinations concerning the District Manager's testimony and calls into question the rest of her explanations for the actions cited by Complainant as harassing.
In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. In this case, Complainant has not produced any evidence to dispute the District Manager's testimony that Complainant was not entitled to a break to eat because he was working a less than four-hour shift that day. In other words, she was challenging Complainant's right to take any break of sufficient time to eat. Complainant has not produced evidence that any other employee working a less than four-hour shift was allowed to take a break to eat. Nor has he challenged the AJ's finding that the collective bargaining agreement specifically supported the District Manager's claim that employees had to work at least four hours to earn a 15-minute break. Therefore, we are not persuaded that Complainant has identified a sufficient reason to require a hearing in this regard.
Complainant also argues that there was another "substantial issue of credibility" with regard to how the District Manager reacted to Complainant's interest in a promotion. However, even assuming Complainant could prove that the District Manager responded to his expression of interest rudely, there is no indication that she was responsible for preventing Complainant's advancement, or that any rudeness was sufficiently severe to create a hostile work environment.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Thus, not all claims of harassment are actionable. Whether the harassment is sufficiently severe to trigger a violation of EEO statutes must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
The undisputed evidence of record, even viewed in the light most favorable to Complainant, does not establish that he was subjected to incidents that were sufficiently severe or pervasive to alter the conditions of his employment. Some of the incidents did not occur as alleged by Complainant and others involved routine workplace interactions between an employee and management. Still other incidents, even if they occurred as alleged, were simply not of sufficient severity to establish a hostile work environment. Moreover, Complainant has not proven that any of the incidents were motivated by his race or disability.
Accordingly, after careful review of the record and consideration of the arguments on appeal, the Agency's final order adopting the AJ's decision that no discrimination was proven in this case is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this case if the complainant or the agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 11, 2015
__________________
Date
1 For ease of reference, we have re-numbered Complainant's allegations as 1-9.
2 The record reflects that claim 9, and race as a basis, was later amended to the instant formal complaint.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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